regulate — vb
- 1. to adjust (the amount of heat, sound, etc, of something) as required; control
- 2. to adjust (an instrument or appliance) so that it operates correctly
- 3. to bring into conformity with a rule, principle, or usage
I begin with a simple definition for a simple word, that still misses the most fundamental mark. The beauty of our Founding Documents was that they were legal documents written in language that the common man might understand. One did not need extensive legal training to understand and discuss the very nature of government and the principles by which they governed. Great care was given to what words were used and how those words might be twisted by future generations to counter the intent of the Founders. In one of the more well known examples (though still obscure considering how few people know this factoid) Thomas Jefferson’s original draft of the Declaration of Independence he listed the inalienable rights as “Life, Liberty, and Property.” Understanding that this might be used to cement the notion that one man can own another as property the text was changed to be what we all know it to be today; “Life, Liberty, and the Pursuit of Happiness.”
To think that such judicious use of words would be cast aside and meanings left ambiguous (as we so often would have to do to accept much of our current legislation) allowing the Federal government powers that can grow and evolve is absurd. But that is exactly what has happened and what has helped perpetuate the fraud that is the modern interpretation of Article 1, Section 8, Clause 3 of the US Constitution, what has become known as The Commerce Clause. It sates that “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” This simple phrase has led to sweeping federal powers. These include the power to control interstate navigation by waterway (and in recent years highways, trains, and planes, oh my!) [Gibbons v Ogden – 1824]. While that ruling seems on the surface to comply with a key American value of government non-involvement in business by rejecting a state sanctioned and enforced monopoly on riverboat services it has gone on to further the scope and power of the Federal government. Essentially this ruling said anything that is used to conduct commerce among the states, foreign Nations, and the Indian tribes was subject to regulation.
This precedent was further cemented in Wickard v. Filburn (1942). In 1938 legislation was enacted limiting the production of wheat a farmer could yield based on the size of their farm. This was done as a price control to drive the price of wheat up. Roscoe Filburn, a farmer in Montgomery County, Ohio, was exceeding his production limits. He was selling the maximum amount allowed, but he also was producing additional wheat for use feeding his family and his livestock. Mr. Filburn was ordered to burn his supply of wheat and pay a fine. In the ruling the courts stated that “Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof.” This means that even if the object of commerce never makes it out of a state it can still be regulated using a power expressly intended for commerce among the several States. The deathblow for future liberty was the further assertion that “Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’” This gives Congress the power to legislate anything they please based on the assertion that it may exert an economic effect on interstate commerce. The threshold of “substantial” is thrown out the window in the very ruling that may have established that precedent by basing such a sweeping ruling on 462 bushels of wheat coming from 23 acres of planting (http://www.law.louisville.edu/constitution-day/gallery/roscoe-filburn). What substantial impact did that have on interstate commerce?
In 1995 a 12th grade student in Texas brought a .38 caliber pistol to school along with five rounds [United States v. Lopez]. He was charged and found guilty of having violated a Gun Free School Zone act. His appeal and defense was that Congress was overstepping their power by legislating control over public schools. The courts denied the motion to dismiss ruling that this was “a constitutional exercise of Congress’ well defined power to regulate activities in and affecting commerce, and the `business’ of elementary, middle and high schools . . . affects interstate commerce.” The case made it’s way to the Supreme Court where the ruling was overruled and for the first time since the New Deal the courts were placing limits on Congressional authority. Justice Rehnquist stated “To uphold the Government’s contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” This would prove to be nothing more than a cry in the night.
In a 6-3 decision in 2005 [Gonzales v. Raich, formerly Ashcroft v. Raich] the courts ruled to turn back even the minimal restrictions placed on the power of Congress by Justice Rehnquist. In 1996 California voters passed a proposition (it is rare that I will applaud legislation coming from California, but in this case I will) allowing the use of marijuana for medicinal purposes (and this is where I express my disappointment with California, why only for medicinal use? But that is another post for another time). In typical fashion the charges stemmed from multiple pieces of Federal legislation, but ultimately the defense rested on limitations of Congressional Authority to regulate intrastate commerce, or the lack thereof in this case. Justice Thomas seems to be a lone beacon for Liberty amongst the black robed tyrants. In his opinion of the case (http://www.law.cornell.edu/supct/html/03-1454.ZD1.html) Thomas states “Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” He goes on to point out “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ‘appropria[te] state police powers under the guise of regulating commerce.’” And he takes it even one step further “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are ‘numerous and indefinite.’
While all of this historical perspective is important to understand, what is often missed is the most fundamental issue; the actual meaning of the words used. The pertinent portion is “[The Congress shall have Power] To regulate Commerce . . . among the several States . . . .” Congress has authority to regulate commerce among the States. What does that mean? Does that mean that Congress can enact regulation based on an abstract hypothetical that possession of an object may have some sort of impact on commerce among the States? The root of the word regulate is regular. In making something regular one is simply ensuring that external forces are not causing distortions. Thus to make commerce among the several States regular Congress is ensuring that one State is not imposing trade restrictions on one State that are not imposed on all (i.e. tariffs or importation quotas). The intent was not to grant government the power to legislate how commerce was conducted, but rather to ensure maximum liberty among those wishing to conduct commerce.